Archive for the ‘Canon 2’ Category

This week, the Texas State Commission on Judicial Conduct publicly admonished Galveston Judge Michelle Slaughter for posting about the criminal trial then-pending before her. In the so-called “boy in a box case,” Judge Slaughter admonished the jurors not to post on Facebook (or other social media) about the case and then proceeded the next day to post about the status of the case and demonstrative evidence on her own Facebook account. She also posted a link to this news article about the case. (Of note, a member of the public posted the following comment in response to Judge Slaughter’s post: “One of my favorite Clint Eastwood movies is ‘Hang ‘Em High’, jus [sic] sayin [sic] your honor. . . .” Judge Slaughter permitted, perhaps inadvertently, that comment to remain on her Facebook page for several months.) In other posts, Judge Slaughter also commented on an unrelated child pornography case and called a defendant “very challenging.” In light of her posts, a defendant moved to disqualify Judge Slaughter, and another judge granted the motion. This mid-trial disqualification caused a mistrial in the defendant’s case.

The Texas Commission concluded that: “Despite her contention that the information she provided was public information, Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the [‘boy in a box’] case or in other high-profile cases. The comments went beyond providing an explanation of the procedures of the court and highlighted evidence that had yet to be introduced at trial.” The full decision, which Judge Slaughter plans to appeal, is available here. For other posts highlighting the need to approach social media cautiously (or to avoid it entirely as to pending cases over which the judge is presiding), see here and here.

Unbelievably, Alabama Chief Justice Roy Moore is still in the news — “unbelievably” because this is the same Chief Justice Moore whose colleagues had to remove from the Alabama Supreme Court for his failure to comply with a direct federal court order to remove his Ten Commandments monument from the public courthouse. As his colleague-justices later concluded, Moore’s actions back in 2001 to 2003 clearly violated the Code of Judicial Conduct, which requires (among other relevant conduct) that judges comply with the law. Moore was nevertheless reelected and has since instructed probate judges not to issue marriage licenses for same-sex marriages. At least two interesting and relevant pieces related to this development follow:

Second, the Arizona Judicial Ethics Advisory Committee just issued Opinion 15-01, which concludes that judges cannot ethically refuse to marry same-sex couples out of religious or other objections. Although judges may refuse to marry all couples or may marry only close family and friends, judges may not refuse to marry same-sex couples and thereby discriminate against them. See Model Code R. 2.3(B). (In a sense, the decision loosely parallels employment law to some extent in that an employer can generally hire or fire an employee for “no reason” but not for a “bad reason.”)

UPDATE: The Arizona Judicial Ethics Advisory Committee revised its opinion last month. The new opinion reaches the same conclusions as above but (1) emphasizes that judges are not required to perform marriages at all (but if they do, they must not discriminate between same- and opposite-sex couples) and (2) deletes the reference to Rule 1.1 (which requires judges to comply with the law). The revised opinion is available here.

In a time when money is flowing into judicial elections, the ABA has finally passed a resolution designed generally to address the often problematic results and appearances when lawyers and litigants contribute or otherwise expend significant sums of money to elect or retain a judge. The ABA’s Judicial Division had defeated an earlier, more detailed resolution to address when judges should recuse themselves because the lawyers or litigants appearing before them had made significant campaign contributions or independent expenditures for (or against) those judges. Although diluted, the new ABA Resolution 105C is still a step in the right direction because it addresses four key areas of improvement and urges training to address these often difficult disqualification questions:

RESOLVED, That the American Bar Association urges that states and territories adopt judicial disqualification and recusal procedures which: (1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge; and

RESOLVED FURTHER, That the American Bar Association urges all states and territories to provide guidance and training to judges in deciding disqualification/recusal motions.

The latest issue of The Professional Lawyer was just published, and Prof. Ben Cooper (Mississippi) included a good article on how to deal with the divisive issue of whether judges should be permitted to “friend” lawyers and litigants on Facebook, and if so, what disclosure obligations result. Prof. Cooper’s article can be found here, and the abstract follows:

A wave of recent judicial ethics opinions from the states and the ABA offers direction on navigating the ethical minefield of social media use by judges. The author, an ethics professor, surveys opinions on point and argues that although they provide helpful guidance on a number of issues, they fall short in terms of providing clarity on the critical issue of whether judges may “friend” lawyers who may appear before them, and if so the extent of any disclosure obligation to other parties in litigation involving the social media “friend.”

As reported in the press (with an interesting account of the state judiciary’s setbacks over the past few years), Pennsylvania has recently adopted a new Code of Judicial Conduct in the image of the 2007 Model Code. Among other notable features, the new PA Code now prohibits service on corporate, and to a lesser extent non-profit, boards. The Code also addresses party and attorney judicial campaign contributions, requiring judicial recusal whenever:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer. In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

Doug Richmond recently wrote an interesting article (1) summarizing several striking instances of judges bullying lawyers (by, e.g., subjecting the lawyers to public ridicule or mean-spirited jokes) and (2) explaining why that bullying violates the Code of Judicial Conduct and is otherwise improper.

The ABA Standing Committee on Ethics and Professional Responsibility has just issued a new formal opinion on a timely judicial ethics topic. The Ethics Committee has not addressed judicial ethics in its formal opinions for over four years (indeed, in the last thirty years, it has done so only three times; for the previous opinions, see here). The next question almost automatically becomes — to what issue does the Model Code owe this attention?

Answer: Judges and Social Media. For example, you may recall the controversial Florida judicial ethics opinion stating that judges cannot “friend” (on Facebook) lawyers who may appear before them; you may have seen elective judges (and their campaign committees) using social media to promote themselves; or you may have seen or heard about judges publicly endorsing candidates for public office through social media. The brand new opinion speaks to all three of these examples (and a few others). In light of the many judicial ethics considerations when judges communicate publicly (whether through social media or older methods), however, the opinion understandably offers very few bright-line rules. The opinion does, however, generally take a pro-social media tone:

Judicious use of ESM can benefit judges in both their personal and professional lives. As their use of this technology increases, judges can take advantage of its utility and potential as a valuable tool for public outreach. When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email or texting.

Professor and former Tennessee Supreme Court Justice Penny White has published an interesting new essay on judicial disqualification, in which she asserts “that robust disqualification provisions can serve as a powerful antidote to the harmful effects of [the White and Citizens United] decisions, particularly when judges view disqualification requests from the public’s perspective.” For the full essay, click the link below:

This piece features an interesting survey of Canadian lawyers and their perception of judges’ impartiality when judges assist self-represented litigants. In addition to that continuing question of the appropriate level of assistance, the piece offers some comparative observations on the American and Canadian law and experience:

How much assistance should a trial judge provide a self-represented litigant [SRL] before the judge’s impartiality will be reasonably questioned? This question has been of continuing concern to both the bench and bar ever since the rise of the pro se litigation movement in the late 1990s, particularly in the context of “mixed” cases involving an SRL and a represented party. Case law and ethics codes provide inconsistent decisions and vague guidelines for judges, who must balance their duty to provide reasonable assistance with their duty to ensure a fair trial for all parties. This paper reports the results of a survey administered to 210 Canadian family law practitioners who were presented with 16 hypothetical scenarios involving an SRL and a represented party. Respondents indicated their views regarding the impartiality and helpfulness of the trial judge in each scenario, involving various procedural defaults by the SRL and different forms of judicial assistance or lack thereof. The results indicate that lawyers’ perceptions of a judge’s impartiality are affected, inter alia, by the favourability of the outcome for the SRL, and whether the assistance provided dealt with procedural or substantive matters. Future research is needed to determine whether a consensus can be established regarding perceptions of lawyers, lay persons, and judges regarding which forms of assistance are reasonable and required, permissible, or impermissible.

The ABA’s standing committees on ethics and discipline are considering changes to the disqualification rule (2.11) of the Model Code of Judicial Conduct in light of Caperton and the problems of judicial campaign contributions and expenditures. The possible revisions are pursuant to Resolution 107, which reads in relevant part:

That the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professional Discipline should proceed on an expedited basis to consider what amendments, if any, should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of Professional Conduct to provide necessary additional guidance to the states on disclosure requirements and standards for judicial disqualification.

The committees have released their second draft of the proposed rule change, which omits several restrictions proposed in the first draft. In response, Cindy Gray and the American Judicature Society proposed a stronger and more comprehensive rule in several respects. That rule can be found on pages 18-19 of this document, which also contains the other commentary on the second draft. The committees have kindly decided to post another draft for comment before the proposed rule goes to the House of Delegates next year.

UPDATE: The third draft is available here. Comments are due by February 22, 2013.

Many readers are likely familiar with the Shalom Rubashkin case, which is now the subject of a short documentary. The case involves many fascinating and frightening details, but of particular relevance are the ex parte contacts: the chief judge met for months with law enforcement planning the raid of Rubashkin’s business. The judge did not disclose the extent of those planning sessions to the defendant or defense counsel; the contacts were instead revealed through a later public records request. Ethics Experts Steve Gillers and Mark Harrison submitted affidavits indicating that both the prosecutors and the judge misstepped ethically. The Supreme Court will soon consider whether to grant cert (it should), in a petition filed by Paul Clement. The new documentary follows:

Additionally, some recent press about the film and the case can be viewed here.

Following the ABA’s Resolution 107 (re: judicial disqualification and campaign contributions), the ABA’s Ethics and Discipline Committees have released for comment a series of ethics amendments that would add greater transparency to judicial campaign contributions and other campaign support. A new Model Rule of Professional Conduct would guarantee that lawyers and law firms disclose their combined contributions to either an administrative court agency or the elected judge herself. (Although the details need some ironing, this is a good idea; read why here.) Furthermore, an amendment to the Model Code of Judicial Conduct would clarify when campaign contributions and other support (e.g., endorsements or campaign services) should result in the judge’s disclosure and recusal.

The Committees will hear testimony at the ABA’s meeting next month in New Orleans. To read the proposed amendments in full, click here.

We rarely see the use of one very scary weapon to keep a trial judge in line — indirect criminal contempt. The Supreme Court of the United States Virgin Islands, however, recently used it. After a trial judge refused to follow the supreme court’s mandate, criticized the accompanying opinion, and recused himself from the case, the supreme court ordered a show cause hearing. Even though the special master who then presided over that hearing recommended that the trial judge be acquitted on all counts, the supreme court — i.e., the same court that was repeatedly criticized by the trial judge in his allegedly offensive recusal order — disagreed, found him in contempt, and set a sentencing date. Although the trial judge’s recusal order did contain overly critical language, the supreme court’s acts are questionable as a matter of due process, cf. Mayberry v. Pennsylvania, 400 U. S. 455, 465-66 (1971); In re Murchison, 349 U.S. 133, 137 (1955), and dangerous to decisional judicial independence (insofar as much of the supreme court’s decision is based on the language in the trial judge’s published order; contempt decisions involving only the act of failing to follow a superior court’s clear order are obviously less problematic). Perhaps the justices should have recused themselves, or at a minimum, given the judge one warning.

Hopefully, this weapon will continue to be a rarity. For the supreme court’s opinion, click here; and for the trial court’s order that offended the supreme court justices enough to impose a criminal conviction on the trial judge, click here.

Canon 2C prohibits judges from “hold[ing] membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” Six months ago, we wrote about the sharply divided decision of the Sixth Circuit Judicial Council, which had concluded that Chief Bankruptcy Judge George Paine did not commit misconduct by remaining a member of an exclusively white-male country club. The Judicial Conference of the United States has now officially disagreed. In particular, its Committee on Judicial Conduct and Disability reviewed the decision and “easily” determined that the judge’s country club “invidiously discriminates against women and African Americans for purposes of Canon 2C and, consequently, that Judge Paine’s membership in the organization runs afoul of that Canon.”

The opinion is worth a close read for many reasons, only two of which follow. (It is interesting, for example, that the Committee twice criticizes the Sixth Circuit for failing to investigate fully the matter and thus basing its decision on incomplete information; the Committee then does nothing further and bases its decision on the same information. But let’s leave that problem for another day and focus on the content of this important opinion.) First, the opinion is worth reading for the footnotes. As is often the case, textual footnotes are among the most thought-provoking (or sometimes mind-numbing) part of opinions. On the point that the Sixth Circuit’s investigation was inadequate, for example, the Committee expressed regret that the Sixth Circuit “appeared to resolve ambiguities in the record against the complainant.” The Committee’s point is a good one, but is it clear that ambiguities (which invariably exist and persist) should be resolved in favor of complainants? Perhaps the answer to that question should vary with the Canon at issue. For Canon 2C, for instance, the respondent judge has voluntarily chosen to join or remain in the allegedly discriminatory organization, the judge will presumably have the best access to the organization’s membership rosters and policies, and the Canon is concerned in part with appearances. In those circumstances, then, perhaps it might be permissible to shift the burden to the judge to prove that the organization does not discriminate — and perhaps that the organization also does not reasonably appear to discriminate.

Canon 2C’s official commentary, on which the Committee later relied and built, does contain a form of burden-shifting when a judge joins or remains in a non-diverse organization, if “reasonable persons with knowledge of all the relevant circumstances would expect the membership would be diverse in the absence of invidious discrimination.” “Relevant factors” in that regard “include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members.” Here is the Committee’s application: “Nashville, Tennessee, is one of the major cosmopolitan cities of the Southern United States. In particular, it boasts a 27% African American population. Its female population is just over 50%. Although few organizations perfectly mirror the population trends of their surrounding locales, a member of the public would reasonably expect to see at least some women and African Americans among Belle Meade’s Resident Membership barring (1) invidious discrimination or (2) something unique about the Club — ‘such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members,’ [Canon 2C Commentary] — that would suggest otherwise. There is, however, nothing about Belle Meade’s stated aims or activities that provides any such justification for the total absence of any female or African American Resident Members. . . . Naturally, there is no shortage of women or — as Judge Paine proclaimed in his 1990 letter to the Club’s Board — African Americans fitting that description.” Thus, absent someone (presumably Judge Paine) coming forward with proof to the contrary (which is obviously unlikely in this case because Judge Paine believed that the club’s policies were indeed problematic), the judge’s membership may be determined to be misconduct.

Later in the footnotes, the Committee also conceded a bombshell: “To our knowledge, Canon 2C has never before been enforced.” To place that statement in its context, Canon 2C, in its current form, has been on the books for twenty years. Now, such shocking statements permit one’s optimistic or pessimistic nature to come out: judicial ethics regulation has finally matured to the point of enforcing a critical rule (and hopefully others like it) designed to ensure an actually and apparently impartial judiciary; or judicial ethics regulation has failed for twenty years to enforce such a critical rule. Indeed, on the pessimistic side of the ledger, it is noteworthy that — despite finding a violation of Canon 2C — the Committee failed to impose any discipline: because Judge Paine has expressed an intention to retire soon, and “because this decision represents the first enforcement of Canon 2C, there is no cause at this point for us to take disciplinary action.” (Indeed, the Committee went further, proclaiming that the judge will retire with his “reputation . . . intact.”) I have noticed this phenomenon several times in discipline decisions involving both lawyers and judges, although most of the cases are older ones. The idea seems sound in a common-law based sanction regime: we should apply the (new) rule only retroactively because, in part, respondents necessarily could not have had notice of the rule in advance to guide their conduct. The idea seems significantly less sound in a code-based sanction regime (i.e., the one that we have had for a long time): Canon 2C has always been publicly available and has always prohibited this behavior by its terms. Why, then, do we give the first respondent a free pass? We can come up with a few reasons, but because the Committee offered none (save the impending retirement), we have no one with which to argue.

Yet another footnote is interesting and particularly so for sex-segregated organizations. Judge Paine’s club (Belle Meade) did have a “lady membership,” which was priced less (but included no voting rights). The Committee noted that “insofar as Lady Membership is preferable to other forms of membership, the exclusion of men from that category arguably constitutes another form of gender discrimination under the Code.”

Second, the opinion is worth reading because it offered some guidance to judges considering joining an organization: “Any judge considering membership in an organization should take steps to ensure that such membership would not appear improper. Naturally, those steps will differ to some degree depending on the particular circumstances. But we expect them to include, in all cases, a survey of the group’s membership, constitution, and bylaws. If ‘reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination,’ but the membership nevertheless is not diverse, the judge should err on the side of caution and decline membership.” The Committee also offered a fuller vision of the two-year remediation exception (i.e., that a judge has up to two years to fix a discriminatory organization to which s/he already belongs): “The two-year qualification must be read in light of Canon 2C’s safeguarding of the appearance of propriety. Thus, we believe that this provision is available only if a judge determines that diversification efforts by the judge could reasonably succeed. In those circumstances, he or she may continue to hold membership in diligent pursuit of those efforts for a reasonable period of time not to exceed two years.”

Dmitry Bam (Maine) has just published a provocative article on judicial recusal. Prof. Bam claims persuasively that we in the field have been ineffectively emphasizing the substantive recusal standards and the actual recusal results in specific cases. As he explains, “[f]ocusing on the final recusal decision, and considering appearances only at the time of that decision, places too much emphasis on an aspect of recusal that may not be so important, at least when it comes to public confidence in the impartiality and fairness of American courts.”

He instead recommends that we shift our emphasis in two steps: “The first part requires that attention shift away from the outcome-based recusal jurisprudence that focuses on the substantive recusal standard and the actual recusal decision. The second requires that attention shift toward the rules, regulations, and procedures that precede the recusal decision: namely, (1) ex ante regulation of judicial conduct and judicial selection that creates the appearance of bias in the first place, and (2) new recusal procedures to govern the processes by which judges make recusal decisions. The recommended shift of attention to ex ante regulation of judicial conduct and appearance based recusal procedures will promote the appearance of judicial impartiality.”

As Prof. Bam himself notes, “[i]t may seem odd at first glance that in this Article about recusal, the key jurisprudential change that I recommend is not actually a change to recusal rules at all, but rather a new approach to regulating judges and aspiring judges.” But his aim is well-intended and one we should keep in mind in reform: “I hope to show that to maximize the appearance of impartiality, the time to think about recusal is before the appearance of bias arises in the first place.”

An ambitious study of drug courts was recently completed. Funded by the National Institute of Justice, several collaborating organizations analyzed more than twenty drug courts over a five-year period. Not surprisingly, the study contains many interesting observations, but what is particularly noteworthy is the correlation between judicial ethics and the effectiveness of those drug courts. That is, almost all of the following findings would have been required or (at a minimum) encouraged as a matter of judicial ethics:

Role of the Judge: The primary mechanism by which drug courts reduce substance use and crime is through the judge. Drug court offenders believe that their judge treated themmore fairly than the comparison group, including demonstrating greater respect andinterest in them as individuals and greater opportunities to express their own voice duringthe proceedings. Furthermore, when offenders have more positive attitudes toward thejudge, they have better outcomes. This was true across all offender subgroups whenexamining demographics, drug use history, criminality, and mental health. A separateanalysis drawing upon the results of structured courtroom observations found, similarly,that drug courts whose judge was rated by members of the research team as exhibiting amore positive judicial demeanor (e.g., respectful, fair, attentive, enthusiastic,consistent/predictable, caring, and knowledgeable) produced better outcomes than otherdrug courts. Both analyses reaffirmed the central role of the judge.

Judges may well have performed these duties as a matter of principle, but it is doubly rewarding to see the principles leading to good results. In light of the above conclusions, the study recommends these four points for drug court judges:

Hold frequent judicial status hearings; in light of previous research on this topic, consider increasing the frequency of status hearings for “high risk” participants in particular.

If the jurisdiction allows it, choose drug court judges carefully. Drug courts will be best served if administrators intentionally assign judges to the drug court who are committed to the model and interested in serving in this role.

Monitor “client satisfaction” with the judge.

Train judges on best practices regarding judicial demeanor and regarding how to communicate effectively with program participants.

The Judicial Council of the Sixth Circuit recently dismissed a complaint against Chief Bankruptcy Judge George C. Paine, concluding that the judge could permissibly remain a member of an exclusively white-male country club. Although the club does have “lady members” and one African-American male non-voting member, the club’s 600 voting members are all white. The complaint alleged, therefore, that the judge violated Canon 2A and Canon 2C of the Code of Conduct for United States Judges. The Council’s vote was deeply divided (10-8), with the slight majority voting to dismiss the complaint. The dissent noted, among other points, that Judge Paine should have resigned at the moment (or at a minimum, within two years after) he realized that his efforts to change the Club’s discriminatory practices had failed. [Read the full opinion here.]

Judge McKoski (recently ret.) has again contributed to the corpus of judicial ethics scholarship. His thought-provoking new work can be downloaded here, and the abstract follows:

The legitimacy of the judicial branch of government depends on the impartiality of its judges. Nineteenth century lawyers and litigants understood this fact and regarded actual impartiality as the fundamental value of judicial ethics. Today, the emphasis on maintaining judicial legitimacy has shifted from reality to perception. Modern codes of judicial ethics are designed first and foremost to protect the “appearance” of impartiality by barring any personal, financial, civic, or political activity of a judge that may be perceived as adversely reflecting on judicial objectivity. Insuring impartiality in fact has become a secondary concern.

The career of nineteenth century judge David Davis illustrates that actual judicial impartiality, not the appearance of impartiality, sustains public faith in the judiciary. Davis was universally recognized as an impartial judge even though his off-bench alliances, especially with Abraham Lincoln, shouted out partiality and favoritism. After establishing Judge Davis’s unimpeachable reputation for courtroom fairness, the Article evaluates his off-bench activities under modern rules of judicial conduct. Next, the Article traces the transition from actual impartiality as the measure of a judge’s worth in Davis’s time to today’s emphasis on appearances. Finally, modest reforms in judicial selection, evaluation, education, and discipline are offered as a means of reestablishing actual impartiality as the fundamental value of judicial ethics.

(1) Adding heat to the recent law professors’ letter to Congress calling for ethical regulation of the Supreme Court, Representatives Chris Murphy and Anthony Weiner have introduced a bill named the Supreme Court Transparency and Disclosure Act. In essence, the resulting law would (1) apply the Code of Conduct for United States Judges to the Supreme Court Justices, (2) require Justices to issue reasons for recusing or failing to recuse themselves, and (3) provide a procedure for review whenever Justices deny motions to disqualify. [For some critical commentary, see here, where Brookings asserts that similar reform proposals would transgress Article III, § 1, vesting judicial power in “one Supreme Court.”]

(2) There has been yet another disappointment from one of the most disappointing cases in Wisconsin. After the Wisconsin Supreme Court Justice Gableman approved a misleading judicial campaign ad, after he then refused to recuse himself in a criminal matter in which his impartiality was questioned, and after the Wisconsin Supreme Court split straight down the conservative-liberal divide both in deciding whether to discipline Gableman and in deciding whether to review his failure to recuse himself (see here for details), we now learn that another Justice (Prosser) called the Chief Justice (Abrahamson) a “total bitch.” He allegedly topped off this statement with a threat: “I will destroy you.” If true, it should be noted that state judges on lower courts are often disciplined for such “intemperate” behavior.